Boa Motion to Dismiss

Case 21-10036-CSS Doc 211-4 Filed 02/15/21 Page 425 of 891 Disposition of the Stapled Securities Gain on sale of Stapled Securities by a Non-U.S. Stapled Securityholder will not be subject to U.S. federal income taxation unless (i) the Non-U.S. Stapled Securityholder’s investment in the Stapled Securities is effectively connected with its conduct of a trade or business in the United States (and, if provided by an applicable income tax treaty, is attributable to a permanent establishment or fixed base the Non-U.S. Stapled Securityholder maintains in the United States) and a properly completed Form W-8ECI has not been provided, (ii) the Non-U.S. Stapled Securityholder is present in the United State for 183 days or more in the taxable year of the sale and other specified conditions are met, or (iii) the Non-U.S. Stapled Securityholder is subject to U.S. federal income tax pursuant to the provisions of the U.S. tax law applicable to U.S. expatriates. If gain on the sale of Stapled Securities would be subject to U.S. federal income taxation, the Stapled Securityholder would generally recognise any gain or loss equal to the difference between the amount realised and the Stapled Securityholder’s adjusted basis in its Stapled Securities that are sold or exchanged. This gain or loss would be capital gain or loss, and would be long-term capital gain or loss if the Stapled Securityholder’s holding period in its Stapled Securities exceeds one year. In addition, a corporate Non-U.S. Stapled Securityholder may be subject to the branch profits tax thereon. Other Distributions by EH-REIT Distributions by EH-REIT to a Non-U.S. Stapled Securityholder attributable to distributions received from SG Corp will not be subject to U.S. federal income taxation unless (i) the Non-U.S. Stapled Securityholder’s investment in the Stapled Securities is effectively connected with its conduct of a trade or business in the United States (and, if provided by an applicable income tax treaty, is attributable to a permanent establishment or fixed base the Non-U.S. Stapled Securityholder maintains in the United States) and a properly completed Form W-8ECI has not been provided or (ii) the Non-U.S. Stapled Securityholder is subject to U.S. federal income tax pursuant to the provisions of the U.S. tax law applicable to U.S. expatriates. 402 Case 21-10036-CSS Doc 211-4 Filed 02/15/21 Page 426 of 891 PLAN OF DISTRIBUTION The Managers are making an offering of 580,558,000 Stapled Securities (representing 66.9% of the total number of Stapled Securities in issue after the Offering) for subscription at the Offering Price under the Placement Tranche and the Public Offer. 535,687,000 Stapled Securities will be offered under the Placement Tranche and 44,871,000 Stapled Securities will be offered under the Public Offer. Stapled Securities may be re-allocated between the Placement Tranche and the Public Offer at the discretion of the Joint Bookrunners (in consultation with the Managers), subject to the minimum stapled securityholding and distribution requirements of the SGX-ST, in the event of an excess of applications in one and a deficit in the other. The Public Offer is open to members of the public in Singapore. Under the Placement Tranche, the Managers intend to offer the Stapled Securities by way of an international placement through the Joint Bookrunners to investors, including institutional investors and other investors in Singapore and elsewhere in reliance on Regulation S. Subject to the terms and conditions set forth in the underwriting agreement entered into between the Joint Bookrunners, the REIT Manager, the Trustee-Manager, the Sponsor and the Stapled Security Lender on 16 May 2019 (the “Underwriting Agreement”), the REIT Manager is expected to effect for the account of EH-REIT and the Trustee-Manager is expected to effect for the account of EH-BT the issue of, and the Joint Bookrunners are expected to severally (and not jointly) subscribe, or procure subscribers, for 580,558,000 Stapled Securities (which includes the Stapled Securities to be issued pursuant to the Offering, and the Cornerstone Stapled Securities), in the proportions set forth opposite their respective names below. Number of Stapled Joint Bookrunners Securities DBS Bank Ltd. 290,279,000 Merrill Lynch (Singapore) Pte. Ltd. 98,694,860 UBS AG, Singapore Branch 69,666,960 BNP Paribas, acting through its Singapore branch 40,639,060 Deutsche Bank AG, Singapore Branch 40,639,060 Jefferies Singapore Limited 40,639,060 Total 580,558,000 The Stapled Securities will be offered at the Offering Price. The Offering Price per Stapled Security in the Placement Tranche and the Public Offer will be identical. The Managers, the Sponsor and the Stapled Security Lender have agreed in the Underwriting Agreement to indemnify the Joint Bookrunners against certain liabilities. The indemnity in the Underwriting Agreement contains a contribution clause which provides that where the indemnification to the Joint Bookrunners is unavailable or insufficient, the Managers, the Sponsor and/or the Stapled Security Lender shall contribute to the amount paid or payable by such Joint Bookrunner as a result of any losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Managers, the Sponsor or the Stapled Security Lender on the one hand and the Joint Bookrunners on the other from the offering of the Stapled Securities. If, however, such allocation provided by the immediately preceding sentence is not permitted by applicable law, then the Managers, Sponsor and/or the Stapled Security Lender shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Managers, the Sponsor and/or the Stapled Security Lender on the one hand and the relevant Joint Bookrunner on the other in connection with the statements or 403 Case 21-10036-CSS Doc 211-4 Filed 02/15/21 Page 427 of 891 omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Managers, the Sponsor and/or the Stapled Security Lender on the one hand and the relevant Joint Bookrunner on the other shall be deemed to be in the same proportion as the total net proceeds from the Stapled Securities in the Offering and Cornerstone Stapled Securities subscribed for or purchased under the Underwriting Agreement (before deducting expenses) bear to the underwriting commission received by the relevant Joint Bookrunner with respect to the Stapled Securities in the Offering and Cornerstone Stapled Securities subscribed for or purchased under the Underwriting Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Managers, the Sponsor and the Stapled Security Lender on the one hand or the Joint Bookrunners on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. No Joint Bookrunner shall be required to contribute any amount in excess of the amount by which the total fees and commissions received by such Joint Bookrunner with respect to the Offering exceeds the amount of any damages which such Joint Bookrunner has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriting Agreement also provides for the obligations of the Joint Bookrunners to subscribe or procure the subscription for the Stapled Securities in the Offering subject to certain conditions contained in the Underwriting Agreement. The Underwriting Agreement may be terminated by the Joint Bookrunners at any time prior to the issue and delivery of the Stapled Securities upon the occurrence of certain events including, among others, certain force majeure events pursuant to the terms of the Underwriting Agreement. Each of the Sole Financial Adviser and Issue Manager, the Joint Global Coordinators, the Joint Bookrunners and their respective associates may engage in transactions with, and perform services for, EHT, EH-REIT, EH-BT, the REIT Manager, the REIT Trustee, the Trustee-Manager and the Sponsor in the ordinary course of business and have engaged, and may in the future engage, in commercial banking or investment banking transactions and/or other commercial transactions with EHT, EH-REIT, EH-BT, the REIT Manager, the REIT Trustee, the Trustee-Manager and the Sponsor, for which they have received or made payment of, or may in the future receive or make payment of, customary compensation. Without prejudice to the generality of the foregoing, and in addition to their role as Joint Bookrunners pursuant to the Underwriting Agreement, and the role of DBS Bank Ltd. as Sole Financial Adviser and Issue Manager, and the role of DBS Bank Ltd. as Stabilising Manager, the Joint Bookrunners intend to pre-fund part of the proceeds raised from the Offering and the Cornerstone Stapled Securities, which will be used by EH-REIT to partially finance the payment to the Vendors for the purchase price of the Initial Portfolio. EHT intends to use part of the proceeds from the Offering and the issuance of Cornerstone Stapled Securities to repay the Joint Bookrunners for such pre-funded amounts.

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